COURT SHOULD END CONFUSION

Published on March 29, 1999.

The U.S. supreme court in April has an opportunity to examine how lower courts are applying the First Amendment to advertising. And a hard look is in order. In the 23 years since it established the principle that truthful "commercial speech" enjoyed First Amendment protection, ensuing court decisions have confused some of the basic ideas the justices rightly embraced.

The appeal the justices are due to hear April 27 (the Greater New Orleans Broadcasting case) is a good example. It involves truthful TV advertising of casino gambling. Such ads are banned by federal law (though no such law hinders state lotteries or casinos operated by Indian tribes from advertising on TV). Operating under the test written by the Supreme Court for judging the constitutionality of ad bans, two lower courts struck down the federal law and a third one upheld it.

In 1996, the Supreme Court unanimously voided a Rhode Island law barring truthful off-premises price advertising for liquor products. Though the justices were not unanimous in their reasoning, they were in the outcome. Less than a year later, however, a federal appeals court in Richmond, Va., let stand the city of Baltimore's ban on most outdoor advertising of alcoholic beverages and tobacco products.

The solution to this confusing situation, sought by ad industry groups and others, is for the justices to simply declare that truthful commercial advertising enjoys the same protections from government interference that political speech does. (Governments would remain free to act against false advertising.) While some justices might hesitate, it's clear governmental regulators believe today's murky standards allow them plenty of latitude to seek bans of truthful ads in the name of protecting the public from one or another social ill. The justices need to act, or the First Amendment protections they